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Ninth Circuit Takes Another Look At Cases Denying Full Intervenor Status In Cases Involving Federal Land Decisions

October 1, 2010

For many years, timber operators, grazing permit holders, oil and gas developers, and recreationalists have struggled to be heard in cases directly affecting their interests because of a rule banning them from fully participating as intervenors in cases that involve their use of federal lands.  That rule is called the “none but a federal defendant rule.”  Yesterday, the Ninth Circuit agreed to review this rule in an en banc panel.  The Order issued yesterday (attached) is from the three-judge panel who heard an intervention appeal by a group of recreationalist organizations in Wilderness Society v. USFS.  These judges had previously stated at oral argument that they could do little with the appeal because their hands were tied by the “none but the federal defendant rule” limiting intervention in the Ninth Circuit.  However, after oral argument, the three-judge panel asked the parties for post hearing briefs on “Whether this case should be heard en banc to decide if this court should abandon the “federal defendant rule.”

After receiving briefs from the appellants, appealees, and amicus, the Ninth Circuit vote decided to take up the issue in an en banc hearing.  En banc hearings allow the Ninth Circuit to change or reconsider circuit precedent.  They are conducted by 9 of the Ninth Circuit court justices.

Under Ninth Circuit procedures, a case can be reviewed en banc before a decision is made by the three-judge panel if the three-judge panel recommends en banc review and the court votes to review the case en banc.

If you have any questions about this post, please contact me at ehoward@dunncarney.com

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